Judges Handling Criminal Cases Against MPs & MLAs Should Not Be Transferred Until Further Orders: Supreme Court

"To ensure the disposal of pending case, the presiding officers of special courts, or CBI courts involved in prosecution of MPs MLAs to continue in their present post until further orders, to ensure disposal of the pending cases." the Bench noted.

The Bench has clarified that the direction is however subject to their retirement or death.

The Court also ordered that no prosecution against legislators should be withdrawn without the sanction of the concerned High Court of the State.

The order has been passed taking into note the Covid pandemic which resulted in no effective trials having been conducted in the last one year.

A Bench comprising CJI Ramana, Justice Vineet Saran and Justice Surya Kant passed the order in the case regarding pendency of criminal cases against MPs and MLAs and expeditious disposal of the same by setting up of Special Courts.

The Bench has also directed the Registrar General of all High Courts to provide information including details of names of judges, place & date of posting, cases disposed of during posting, stage of pending cases and orders reserved.

Further, liberty has been granted to the Registrars of the High Courts to approach the top court through an application, in case of any necessity, emergency or for relaxation of the condition. The matter will be heard next on August 25th.

The direction has been issued by the top court after the Amicus Curiae in the case, Senior Advocate Vijay Hansaria, urged the Court to direct that the officers presiding over the Special Courts for MP/ MLS should continue on their posts for a period of two years unless the post-fall vacant on account of death, retirement etc.

The Amicus also cited the top Court's order in the case of Prakash Singh v. Union of India, where it was held that the Director General of Police of the States should have a minimum tenure of at least two years as one of the measures for preservation and strengthening the rule of law.

The directions were issued in a plea filed in the Supreme Court in 2016 demanding that convicted persons be debarred uniformly from Legislature, Executive and Judiciary.

The Supreme Court had earlier opined that criminal prosecution against elected representatives (MPs and MLAs) need to be concluded expeditiously not only because of the rising wave of criminalisation occurring in the politics in the country, but also due to the power that elected representatives (sitting or former) wield, to influence or hamper effective prosecution.

Through its order dated 16th September 2020, the Court had asked the Chief Justice of the High Courts to formulate an action plan with respect to increasing the number of Special Courts and rationalising the pending criminal cases. They were also designate a Special Bench, comprising themselves and their designate, in order to monitor the progress of these trials

The Chief Justices while preparing the action plan were also asked to consider if in cases where the trials are already ongoing in an expeditious manner, if transferring the same to a different Court would be necessary and appropriate.

The present petition, filed by Mr. Ashwini Kumar Upadhyay, demanded that an order be issued directing the Centre to take necessary steps to debar persons charged with criminal offences from contesting elections, forming a political party and becoming office-bearers of any party. It further sought a direction for providing adequate infrastructure to set up special Courts to decide criminal cases related to members of the Legislature, Executive and Judiciary within one year.

The plea also sought directions to implement the "Important Electoral Reforms" proposed by Election Commission, Law Commission and National Commission to Review the Working of the Constitution;

Further directions have been sought to set minimum qualification and maximum age limit for Legislatures and allow cost of the petition to petitioner.

Case Title: Ashwini Kumar Upadhyay & Ors. v. Union of India & Ors.

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